HC 157/04
THE HIGH COURT
RECORD NO. 10137P/2002

PATRICK McGARTH
PLAINTIFF 
AND 
INDEPENDENT NEWSPAPERS (IRELAND) LIMITED
DEFENDANTS

Judgment of Mr. Justice Gilligan delivered on the 21st day of April, 2004.
	The plaintiff in these proceedings is a fitter employed by CIE.  The defendants are the publishers printers and proprietors of the Evening Herald newspaper.  
	On or about 21st September 2001 the defendants caused to be printed and published in their edition of the Evening Herald a photograph of the plaintiff above an article entitled “Eircom investors still hold out for better bid”.  The photograph of the plaintiff contained a caption which stated “losses; businessman Pat McGarth stands to lose thousands after investing £50,000 in Eircom.”  
	The plaintiff alleges that he is not in fact a business man but is employed as a fitter with Irish Rail, has no personal wealth and in fact borrowed money to invest in Eircom shares.  In addition the plaintiff said that he has been a trade union shop steward for many years and enjoyed the trust and confidence of his fellow workers who understood him to be in similar economic circumstances to themselves. 
	The plaintiff pleads by way of innuendo arising from this publication of the 21st September 2001 that the words published meant and were understood to mean;
(a)	the plaintiff had dishonestly concealed from his co-workers his activities as a business man and personal wealth.
(b)	the plaintiff had cynically and dishonestly represented himself to his co-workers as being a committed trade unionist with no conflicting interest.
(c)	the plaintiff had dishonestly pretended to his co-workers that he was in the same economic circumstances as them.
(d)	the plaintiff had wilfully misled his co-workers into supporting him as a trade union representative.
The plaintiff alleges that upon becoming aware of the publication he immediately contacted the defendants and requested them to publish an apology and correction.  He says the defendants refused to apologise and without further consultation with the plaintiff and without the plaintiff’s consent published on the 25th September 2001 a correction which consisted of a photograph of “CIE tradesman Pat McGarth who was described as a business man in Friday’s Your Money borrowed to invest £9,600 in Eircom shares not £50,000 as reported.  “The photograph and correction statement were published under the heading “big business linked to family of terrorist” and the plaintiff alleges that no attempt was made by the defendants to distance or distinguish the photograph of himself from the contents of the article.  
The plaintiff alleges that by virtue of the placing of the photograph and the correction statement in conjunction with the article in the Evening Herald of 25th September 2001 the contents thereof in their natural and ordinary meaning meant or were understood to mean that the plaintiff 
1. was a terrorist 
2. was a criminal 
3. had ties with known and/or reputed terrorist organisations 
4. would conduct himself in such a manner as to invite a criminal prosecution for involvement in terrorist activities 
5. was involved in big business for the purpose of raising money to fund terrorist activities 
6. was part of a family of terrorists 
7. would see no reason to sever ties with terrorist organisations 
8. would condone the commission of terrorist activity in any manner 
9. was one of a family of terrorists.
The plaintiff contends that he has suffered severe distress embarrassment loss damage and expense and has also been seriously injured in his character credit and reputation and has been brought into public scandal odium and contempt.  In particular the plaintiff was involved in elections within Irish Rail seeking a position as a worker director on the board of Irish Rail and the actions of the defendant was a contributory factor in the plaintiff losing the aforesaid elections.  
The defendants brought a notice of motion dated 21st January 2003 seeking the trial of a number of preliminary issues and Kearns J. on 3rd March 2003 directed that the following issues be tried before a judge sitting alone;
1.	Whether or not the photograph and correction published by the defendant in the Evening Herald newspapers on 25th September 2001 operated as an accord and satisfaction of the cause of action alleged in the statement of claim herein in paragraphs 3, 4 and 5 thereof so that it has been discharged.  
2.	Whether the article complained of in paragraph 7 of the statement of claim is capable of bearing any of the defamatory meanings pleaded in paragraph 8 of the statement of claim.
In points of claim the defendants claim firstly that the photograph and correction published by the defendant in the Evening Herald newspaper on 25th September 2001 operated as an accord and satisfaction of the cause of action alleged in the statement of claim herein at paragraphs 3, 4 and 5 thereof so that it has been discharged.  The defendants allege that on or about the 24th September 2001 an agreement was reached between the plaintiff and Frank Coughlan, Associate Editor of the Evening Herald, that in consideration of the defendant causing to be printed and published a photograph of the plaintiff on the same page and in the same position as a photograph and caption which had been published in the Evening Herald on 21st September 2001 together with an agreed correction which was to read as follows 
“Correction; CIE tradesman Pat McGarth who was described as business man in Friday’s Your Money borrowed to invest £9,600 in Eircom shares, not £50,000 as reported”.  The plaintiff would accept such correction and publication in full satisfaction and in discharge of his cause of action if any which was and is denied in respect of the said article of 21st September 2001. 
The plaintiff contends that the photograph and correction published by the defendant in the Evening Herald newspaper on 25th September 2001 did not operate as an accord and satisfaction of the plaintiff’s cause of action as set out at paragraphs 3, 4 and 5 of the statement of claim and that in particular no agreement was reached between the plaintiff and Mr. Frank Coughlan as alleged.  Further the plaintiff says that the photograph and alleged correction were published without consultation with him and without his consent and that the defendant is not entitled to the reliefs claimed. 
Secondly the defendant contends that the article published by the defendant in the Evening Herald newspaper on 25th September 2001 as complained of in paragraph 7 of the statement of claim is as a matter of law not capable of bearing any of the defamatory meanings pleaded at paragraph 8 of the statement of claim herein.
The defendant contends that the plaintiff seeks to isolate the photograph and the headline from both the text of the article and the caption beneath the photograph and the defendant claims the plaintiff is not entitled as a matter of law to isolate the photograph from the caption or to isolate the headline from the article to which it refers which relates to various well known international companies doing business with the Bin Laden empire and wherein reference is made to the worlds most wanted man Osama Bin Laden having over fifty other brothers and sisters and the family company Saudi Bin Laden group having a turnover of 5 billion a year and having links with many of the worlds largest companies.
The plaintiff disputes the defendants contention that the photograph and text published in the Evening Herald newspaper of September 25th 2001 is not capable as a matter of law of bearing any of the defamatory meanings pleaded at paragraph 8 of the statement of claim and say that it is self evident from the juxta position of the photograph of the plaintiff beneath the headline “big business linked to family of terrorist” that an ordinary reader of the newspaper would associate the plaintiff with the terrorist family the subject matter of the article and so by its positioning in the newspaper in itself constituted a serious libel.  
	The first issue is as to whether the photograph and correction published by the defendant in the Evening Herald newspapers on 25th day of September 2001 operated as an accord and satisfaction of the cause of action alleged in the statement of claim herein in paragraphs 3, 4 and 5 thereof so that it has been discharged.
The onus of proof in this regard rests on the defendant as the moving party and the threshold is that of the balance of probability. 
I am satisfied that the central requirements of a valid compromise are that 
1.	consideration exists 
2.	that an agreement can be identified which is complete and certain and 3.	the parties intend to create legal relations 
	It is common case that there were two telephone discussions on Monday 24th September 2001 which led to the publication of the photograph and correction in the Your Money article as published in the Evening Herald of Tuesday 25th September, 2001.  
	I am not satisfied however having regard to the content of the two discussions that an agreement can be identified which is complete and certain.  The principle issue between the parties is the question of an apology.
	The plaintiff is adamant that not only did he ask for an apology but was insistent that an apology be published and he goes as far as to say that if an apology had been made he would not have instituted the present proceedings.  He denies any completed agreement essentially because Mr. Coughlan would not agree an apology with him.
	Mr. Coughlan for his part accepts that in giving his evidence he is recollecting as best he can what he said at the point in time of the conversation in relation to the two complaints which he addressed immediately.
	When asked directly whether or not the plaintiff asked for an apology he replied “no, not that I remember, not directly.  He asked for redress.  Maybe he used the word apology, but I mean he asked for redress and I said what sort of redress do you want and this is specifically what he asked for.  I am quite emphatic and I remember that explicitly”.
	I take the view on the evidence that on the balance of probabilities the plaintiff was looking for an apology which he regarded as being important but Mr. Coughlan does not appear to have appreciated its significance and in his own mind may well have taken the view that if the correction and photograph were published which dealt with the issue of the plaintiff being described as a business man, and having invested £50,000 in Eircom shares, that would bring finality to the matter.  I also bear in mind in this regard that Mr. Coughlan in referring to his brief conversation with Mr. O’Regan his editor used terminology to the effect that if he published the correction in the terms as outlined he thought that should be the end of the matter.
	I am satisfied in the circumstances that the parties were not ad idem and since the defendant in this motion is the moving party and the onus rests on the defendant I am not satisfied on the balance of probabilities that the defendant has discharged the onus of proof of satisfying me that there was a complete and certain agreement.  
	In these circumstances I hold that the photograph and correction published by the defendant in the Evening Herald newspaper on 25th day of September, 2001 did not operate as an accord and satisfaction of the cause alleged in the statement of claim in paragraphs 3, 4 and 5 thereof so that it has been discharged.
	The second issue for determination is as to whether the article complained of in paragraph 7 of the statement of claim is capable of bearing any of the defamatory meanings pleaded in paragraph 8 of the statement of claim.  
	The defendant and moving party makes the case that the issue in this aspect is as to whether the words are capable of bearing a defamatory meaning accepting that the question is one of law.  In determining this question the defendant relies on two principles the first being that although a combination of words may in fact convey different meanings to the minds of different readers the jury in a libel action applying the criterion of what the words would convey to the mind of the ordinary reasonable fair minded reader is required to determine the single meaning which the publication conveyed to the notional reasonable reader and to base its verdict and any award of damages on the assumption that this was the one sense which all readers would have understood it.  The same necessarily applies to a judge determining a preliminary issue on the meaning.  Secondly that in order to determine the natural and ordinary meaning of the words of which the plaintiff complains it is necessary to take into account the context in which the words were used and the mode of publication.  Thus a plaintiff cannot select an isolated passage in an article and complain of that alone if other parts of the article throw a different light on that passage.  In regard to these two principles the plaintiff relies on the decision of the House of Lords in Charleston & Anor v. Newsgroup Newspapers Limited & Anor [1995] 2 AC 65.
	The defendant further contends that these principles dispose of the present case in that the reasonable reader looking at the entire of the material published by the Evening Herald on 25th September, 2001 could not understand the content of the article together with the photograph to infer that the plaintiff was connected with terrorism.
	The defendant contends that the caption makes it clear that the plaintiff was a man whom the newspaper had wrongly suggested some days ago to be a business man but who was in fact a tradesman, that the plaintiff was a man whom the newspaper had wrongly suggested to have invested £50,000 in Eircom shares when he had in fact invested only £9,600, that the caption makes it clear that the reason for publishing the photograph together with the caption beneath it was to correct the earlier statements that had been made, and that in these circumstances it is inconceivable that the reasonable reader could understand the plaintiff to be involved in “big business” or still less “linked to a family of terrorists”.  
	Furthermore the defendant contends that the reasonable reader reading the article would necessarily understand that the theme of the article was multi national companies who had business connections with the construction company owned by the family of Osama Bin Laden and had nothing to do with the plaintiff or any person who worked in CIE or who borrowed money to invest in Eircom shares and further the reasonable reader could not understand the text of the article to mean that the officers or associates of the multi national companies referred to were terrorists or criminals or were involved in terrorist activities as pleaded in the statement of claim.  
	The plaintiff refers to the statement of claim and the principal plea that on or about the 25th day of September 2001 the defendants their respective servants or agents falsely and maliciously printed distributed and published or caused to be printed distributed and published a photograph of the plaintiff in a prominent location as part of an article entitled “Big Business linked to family of terrorist”.  No attempt was made by the defendant its servants or agents to distance or distinguish the aforesaid photograph of the plaintiff from the content of the article and that by virtue of the placing of the photograph of the plaintiff above the article and having particular regard to the headline thereof the content of the article gives rise to the meanings complained of in the statement of claim.
Counsel on the plaintiff’s behalf contends that in the context of an application to strike out the proceedings prior to the trial of the action the test to be applied is whether it is arguable that the matter might constitute a defamation and relies on the decision of Murphy J. in Conlon v. Times Newspapers Limited [1995] 2 ILRM 76.
I take the view that the headline, the article, the accompanying photograph, and the caption underneath the photograph have to be considered in totality as published and that further the correct criterion to be applied is the meaning which the title, the article, the accompanying photograph, and the caption underneath would convey to the mind of the ordinary reasonable fair minded reader.  
I am satisfied that the issue to be determined was argued before Kearns J. and it is clear from the notice of motion that alternative issues were proposed namely an order directing the trial of a preliminary issue as to whether the article complained of in paragraph 7 of the statement of claim is capable of bearing any of the defamatory meanings pleaded in paragraph 8 of the statement of claim or further in the alternative an order dismissing the plaintiff’s claim in relation to the publication on 25th day of September 2001 on the grounds that it discloses no reasonable cause of action and/or pursuant to the inherent jurisdiction of this honourable court.
Kearns J. specifically ordered that the preliminary issue to be tried before this court was as to whether the article complained of in paragraph 7 of the statement of claim is capable of bearing any of the defamatory meanings pleaded in paragraph 8 of the statement of claim.  
I take the view the issue to be tried before me is that as set out by Kearns J. and not as to whether or not the publication discloses no reasonable cause of action.
If I was dealing with an application to dismiss the plaintiff’s claim in relation to the publication of the 25th day of September 2001 on the grounds that it discloses no reasonable cause of action the correct approach in my view to deciding that issue would be to follow the reasoning of Murphy J. in Conlon v. Times Newspapers Limited [1995] 2 ILRM 76 wherein he clearly recognised the distinction to be drawn between an application to withdraw a case from a jury and an application to have the same action struck out as showing no cause of action or as being wholly unsustainable.
Murphy J. took the view that the defendants had failed to show that the plaintiff’s case was unsustainable or that it was bound to fail and that furthermore it could not seriously be contended that the plaintiff’s case failed to disclose a cause of action and at the very least it was arguable that the alleged defamatory statements were capable of certain meanings.  Murphy J. in effect took the view that the question before him was whether the action was clearly unsustainable and stated that whether the words are capable of bearing a particular meaning will be determined at the trial of the action by the trial judge.  In the circumstances that pertained before him Murphy J. took the view that it was sufficient if the plaintiff could show that there was at least an argument that the words are capable of the meaning for which he contends.
The issue which I have to determine is whether the words are capable of bearing a particular meaning and Mr. McCullough on behalf of the defendant has conceded that he is not entitled to a re-argue this issue again before the trial judge if unsuccessful in this application.  He accepts that he asks the court to determine the issue as a preliminary issue and that that has put the issue in the same position as if it was being determined during the course of the trial by the trial judge.  At the trial it is for the judge to decide as a manner of law whether the words are capable of bearing a defamatory meaning on the principal that it is for the court to say whether the publication is fairly capable of a construction which would make it libellous and for the jury to say whether in fact that construction ought, under the circumstances, to be attributed to it.  In determining whether the words are capable of a defamatory meaning the court is obliged to construe the words according to the fair and natural meaning which would be given to them by reasonable persons of ordinary intelligence and will not consider what person setting themselves to work to deduce some unusual meaning might extract from them.  The court should avoid an over elaborate analysis of the article because the ordinary reader would not analyse the article as a lawyer or accountant would analyse documents or accounts.  In deciding the issue I am satisfied that I am entitled to consider the impression that the article has conveyed to me personally in considering what impact it would make on the hypothetical reasonable reader and lastly the court should not take a too literal approach to its task.  
Accordingly taking the article of Tuesday the 25th of September 2001 as a complete entity including the headline the content of the article, the placing of the photograph of the plaintiff and the caption underneath the photograph and placing myself in the shoes of the ordinary reasonable fair minded reader I take the view that the article complained of in paragraph 7 of the statement of claim is not capable of meaning that the plaintiff was a terrorist or a criminal or was involved with persons who had terrorist or criminal involvement nor is the article capable of bearing any of the defamatory meanings pleaded in paragraph 8 of the statement of claim.  
In these circumstances I will hear counsels submissions on the form of the appropriate order which follow my ruling on the issues before me.